An entrepreneur devoted to innovation and protection of intellectual property lets loose about patent trolls and the patent system that enables them.

Below:

Patent trolls bear much more similarity to the trolls from
Scandinavian folklore than the wide-eyed dolls with colorful
Mohawks from the 90s. Literature describes these ancient trolls
in PG-13 terms as “unhelpful,” and the same can be said about
patent trolls and their role in modern society.

Before I dive into my issue with patent trolls, I should clarify
a couple of things. First, as an entrepreneur and founder of a
company employing 250+ people, I have great respect for the
patent system. It is, in part, responsible for the innovation
that’s powered our economy for decades. Second, I value
intellectual property and an individual’s right to protect their
work from use by others without permission.

What’s the difference between a patent troll and a
regular copyright infringement lawsuit? By
definition, patent trolls are not entrepreneurs, nor employers,
nor do they fuel innovation of any kind. They are “Non-Practicing
Entities” (NPEs) or “Patent Assertion Entities” (PAEs), which
means that they don’t use the patents they own to produce
anything. They operate for the sole purpose of extorting money
from the companies that do invest in making innovative
products and doemploy people to make the
visions behind the patents come to life.

Isn’t this about big tech companies going head-to-head in
court? Not really. While cases involving millions
of dollars and Fortune 500 companies get the
most media attention, patent trolls target startups and
small businesses that most. According to a research report
from Santa Clara University (“Startups and Patent Trolls”), 55 percent
of defendants are businesses with less than $10 million in
annual revenue. Patent attorneys charge approximately $500 per
hour and patent trolls offer to settle for (a little) less
than the cost of a court battle, which is why start-ups and
small businesses are a more lucrative target than big
companies with armies of lawyers on staff.

Everyone venturing out on their own knows they’re taking a risk.
Most of them are ready to fail based on the merit of their idea.
However, there isn’t a single thought more frustrating than
knowing that your business could crumble because fighting a
patent troll costs more than what you can afford. I know, because
my company, Perforce Software, is currently defending itself
against a patent troll to the tune of tens of thousands of
dollars, in a claim that anyone with an ounce of technical savvy
could see is patently (no pun intended) ridiculous.

Protecting what is rightfully
yours. Despite the financial impact of building a
legal defense, we’re actually one of the fortunate ones because
we know that we’ll win our case. How can we be so sure? We have
records of every asset that matters to our company—from source
code, to legal documents, to multimedia assets—and I can tell you
when each asset was first checked in, when a new version was
created, who made the changes, if the file was moved, what it had
for breakfast and who was its first crush.

Now, you might wonder how I kept such immaculately detailed
records for almost 20 years and this is where I have to make
a disclaimer. My company specializes in version control software.
However, we’re not the only company in the market that offers
version control, nor has it prevented us from being targeted by
patent trolls ourselves.

I speak to you as an entrepreneur who wants to see the end of
patent trolling and is eager to share the big lesson learned:
track your ideas and your assets as you develop them. These
records can invalidate infringement suits and save you
thousands of dollars if your business is ever has to battle a
patent troll.

Technology patents should be in a league of their
own. In the long run, the only way to stop patent
trolls from destroying more businesses with worthless accusations
is to overhaul the way patents apply to technology.

The first step would be to eliminate traditional patents where
claims are filed through a lengthy process and owned for 20
years. Technology should be treated as an “original work of
authorship” and granted the same copyright protection as art,
music or literature. This would benefit innovation immensely
because the costly filing process would be replaced with instant
protection. Most importantly, it would put an end to ludicrous
claims to patents covering basic concepts rather than unique
expressions of those concepts.

The recent case of Oracle v. Google exemplifies the nature of the
problem. Oracle claimed that Java’s API was subject to copyright,
while Google argued fair use based on the broadness of the
concept. I wholeheartedly agreed with the first ruling, which stated “So long
as the specific code used to implement a method is different,
anyone is free under the Copyright Act to write his or her own
code to carry out exactly the same function or specification
of any methods used in the Java API. It does not matter that
the declaration or method header lines are identical."

This verdict was later overturned, which I believe will lead to
adverse consequences that will soon be felt across the
industry.

Another issue is that the nature of technology is such that
innovation is only ‘innovative’ for a short time. The
newest-and-greatest becomes ordinary and the next generation of
the product sets a new standard. That is all-the more reason to
end 20-year technology patents. Instead, grant them patents for
only however long they’re useful.

That isn’t an easy definition to articulate in legal terms but
the outdated system we have sets traps for developers who want to
expand and iterate on existing technology. That stifles
innovation and industry growth.

But in the meantime…It is
frustrating as dealing with patents trolls, and just
as frustrating waiting for meaningful legislation to be
passed and enforced. Nonetheless, we can’t let it discourage us
from pursuing our passions. America was built on inventions and
innovations. We shouldn’t let the greedy minority that are patent
trolls destroy our spirits and our legacy. To borrow an old adage
from across the pond, I say we all keep calm and innovate on.